EXECUTION COPY
WPS RESOURCES CORPORATION
$300,000,000
6.11% Junior Subordinated Notes Due
2066
Underwriting Agreement
November 28, 2006
J.P. Morgan Securities Inc.
Banc of America Securities LLC
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
WPS
Resources Corporation, a Wisconsin corporation (the
“Company”), proposes to issue and sell to the several
Underwriters listed in Schedule 1 hereto (the
“Underwriters”), for whom you are acting as
representatives (the “Representatives”), $300,000,000
principal amount of its 6.11% Junior Subordinated Notes Due 2066
(the “Securities”). The Securities will be issued
pursuant to a Subordinated Indenture, dated as of November 13, 2006
(the “Original Subordinated Indenture”), between the
Company and U.S. Bank National Association, as trustee (the
“Trustee”), to be supplemented by the First
Supplemental Indenture thereto, creating the series in which the
Securities are to be issued (the “Supplemental
Indenture”). The term “Indenture,” as used
herein, means the Original Subordinated Indenture as supplemented
by the Supplemental Indenture.
The
Company hereby confirms its agreement with the several Underwriters
concerning the purchase and sale of the Securities, as
follows:
1.
Registration Statement . The Company has prepared and filed
with the Securities and Exchange Commission (the
“Commission”) under the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the “Securities Act”), a registration
statement on Form S-3 (File No. 333-133194), including a prospectus
(the “Basic Prospectus”), to be used in connection with
the public offering and sale of certain securities of the Company,
including the Securities. Such registration statement, as amended,
at the time of its effectiveness, including the information, if
any, deemed pursuant to Rule 430A, 430B or 430C under the
Securities Act to be part of the registration statement at the time
of its effectiveness, is referred to herein as the
“Registration Statement.” In addition, the Company will
file with the Commission a prospectus supplement specifically
relating the Securities (the “Prospectus Supplement”)
pursuant to Rule 424 of the Securities Act within the applicable
time period set forth therein. The term “Preliminary
Prospectus” means a preliminary prospectus supplement
specifically relating to the Securities, together with the Basic
Prospectus, and the term “Prospectus” means the Basic
Prospectus, together with the Prospectus Supplement specifically
relating to the Securities, in the form first used (or made
available upon request of purchasers pursuant to Rule 173 under the
Securities Act) in connection with confirmation of sales of the
Securities. Any reference in this Agreement to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Securities Act, as of the effective date of the Registration
Statement or the date of such Preliminary Prospectus or the
Prospectus, as the case may be, and any reference to
“amend”, “amendment” or
“supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date
under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively,
the “Exchange Act”) that are deemed to be incorporated
by reference therein. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Registration
Statement and the Prospectus.
At
or prior to the time when sales of the Securities were first made
(the “Time of Sale”), the Company had prepared or
approved the following information: a Preliminary Prospectus dated
November 27, 2006, and each “free-writing prospectus”
(as defined pursuant to Rule 405 under the Securities Act), if any,
listed on Annex A hereto. Such Preliminary Prospectus and the
free-writing prospectuses, if any, included on Annex A, are
collectively referred to in this Agreement as the “Time of
Sale Information.”
2.
Purchase of the Securities by the Underwriters . (a) The
Company agrees to issue and sell the Securities to the several
Underwriters as provided in this Agreement, and each Underwriter,
on the basis of the representations, warranties and agreements set
forth herein and subject to the conditions set forth herein,
agrees, severally and not jointly, to purchase from the Company the
respective principal amount of Securities set forth opposite such
Underwriter’s name in Schedule 1 hereto at a price equal to
98.978% of the principal amount thereof. The Company will not be
obligated to deliver any of the Securities except upon payment for
all the Securities to be purchased as provided herein.
(b)
The Company understands that the Underwriters intend to make a
public offering of the Securities as soon after the effectiveness
of this Agreement as in the judgment of the Representatives is
advisable and initially to offer the Securities on the terms set
forth in the Prospectus. The Company acknowledges and agrees that
the Underwriters may offer and sell Securities to or through any
affiliate of an Underwriter and that any such affiliate may offer
and sell Securities purchased by it to or through any
Underwriter.
(c)
Payment for and delivery of the Securities will be made at the
offices of Foley & Lardner LLP at 9:00 A.M., central time, on
December 1, 2006, or at such other time or place on the same or
such other date, not later than the fifth business day thereafter,
as the Representatives and the Company may agree upon in writing.
The time and date of such payment and delivery is referred to
herein as the “Closing Date”.
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(d)
Payment for the Securities shall be made by wire transfer in
immediately available funds to the account(s) specified by the
Company to the Representatives against delivery to the nominee of
The Depository Trust Company, for the account of the Underwriters,
of one or more global notes representing the Securities
(collectively, the “Global Note”), with any transfer
taxes payable in connection with the sale of the Securities duly
paid by the Company. The Global Note will be made available for
inspection by the Representatives not later than 1:00 P.M., New
York City time, on the business day prior to the Closing
Date.
(e)
The Company acknowledges and agrees that the Underwriters are
acting solely in the capacity of an arm’s length contractual
counterparty to the Company with respect to the offering of
Securities contemplated hereby (including in connection with
determining the terms of the offering) and not as a financial
advisor or a fiduciary to, or an agent of, the Company or any other
person. Additionally, neither the Representatives nor any other
Underwriter is advising the Company or any other person as to any
legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors
concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no
responsibility or liability to the Company with respect thereto.
Any review by the Underwriters of the Company, the transactions
contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriters and
shall not be on behalf of the Company.
3.
Representations and Warranties of the Company . The Company
represents and warrants to each Underwriter that:
(a)
Preliminary Prospectus. No order preventing or suspending
the use of any Preliminary Prospectus has been issued by the
Commission, and each Preliminary Prospectus, at the time of filing
thereof, complied in all material respects with the Securities Act
and did not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided that the Company makes no representation and
warranty with respect to any statements or omissions made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in any Preliminary
Prospectus. Each Preliminary Prospectus delivered to the
Underwriters for use in connection with the offering of the
Securities was identical to the electronically transmitted copy
thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T under the Securities
Act.
(b)
Time of Sale Information . The Time of Sale Information, at
the Time of Sale did not, and at the Closing Date will not, contain
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in
such Time of Sale Information. No statement of material fact
included in the Prospectus has been omitted from the Time of Sale
Information and no statement of material fact included in the Time
of Sale Information that is required to be included in the
Prospectus has been omitted therefrom.
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(c)
Issuer Free Writing Prospectus. The Company
(including its agents and representatives, other than the
Underwriters in their capacity as such) has not prepared, made,
used, authorized, approved or referred to and will not prepare,
make, use, authorize, approve or refer to any “written
communication” (as defined in Rule 405 under the Securities
Act) that constitutes an offer to sell or solicitation of an offer
to buy the Securities (each such communication by the Company or
its agents and representatives (other than a communication referred
to in clauses (i), (ii) and (iii) below) an “Issuer Free
Writing Prospectus”) other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of the
Securities Act or Rule 134 under the Securities Act, (ii) the
Preliminary Prospectus, (iii) the Prospectus, (iv) the documents
listed on Annex A hereto as constituting the Time of Sale
Information and (v) any electronic road show or other written
communications, in each case approved in writing in advance by the
Representatives. Each such Issuer Free Writing Prospectus complied
in all material respects with the Securities Act, has been or will
be (within the time period specified in Rule 433) filed in
accordance with the Securities Act (to the extent required thereby)
and, when taken together with the Preliminary Prospectus filed
prior to the first use of such Issuer Free Writing Prospectus, did
not, and at the Closing Date will not, contain any untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided that the Company makes no representation and
warranty with respect to any statements or omissions made in each
such Issuer Free Writing Prospectus in reliance upon and in
conformity with information relating to any Underwriter furnished
to the Company in writing by such Underwriter through the
Representatives expressly for use in any Issuer Free Writing
Prospectus.
(d)
Registration Statement and Prospectus. The Registration
Statement is an “automatic shelf registration
statement” as defined under Rule 405 of the Securities Act
that has been filed with the Commission not earlier than three
years prior to the date hereof; and no notice of objection of the
Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under
the Securities Act has been received by the Company. No order
suspending the effectiveness of the Registration Statement has been
issued by the Commission, and no proceeding for that purpose or
pursuant to Section 8A of the Securities Act against the Company or
related to the offering has been initiated or threatened by the
Commission; as of the applicable effective date of the Registration
Statement and any amendment thereto, the Registration Statement
complied and will comply in all material respects with the
Securities Act and the Trust Indenture Act of 1939, as amended, and
the rules and regulations of the Commission thereunder
(collectively, the “Trust Indenture Act”), and did not
and will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading;
and as of the date of the Prospectus and any amendment or
supplement thereto and as of the Closing Date, the Prospectus will
not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided that the Company makes no representation and
warranty with respect to (i) that part of the Registration
Statement that constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Trustee under the Trust Indenture
Act or (ii) any statements or omissions made in reliance upon and
in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement and
the Prospectus and any amendment or supplement thereto. Each
Prospectus delivered to the Underwriters for use in connection with
the offering of the Securities was identical to the electronically
transmitted copy thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T under the
Securities Act.
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(e)
Incorporated Documents. The documents incorporated by
reference in the Registration Statement, the Prospectus and the
Time of Sale Information, when they became effective or were filed
with the Commission, as the case may be, conformed in all material
respects to the requirements of the Exchange Act, and none of such
documents contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Registration Statement, the Prospectus or the Time of Sale
Information, when such documents become effective or are filed with
the Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange
Act, as applicable, and will not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(f)
Financial Statements. The financial statements and the
related notes thereto of the Company and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the
Prospectus comply in all material respects with the applicable
requirements of the Securities Act and the Exchange Act, as
applicable, and present fairly the financial position of the
Company and its subsidiaries as of the dates indicated and the
results of their operations, stockholders’ equity and cash
flows for the periods specified; such financial statements have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
covered thereby, except as may be otherwise stated therein and
except to the extent that certain information normally disclosed in
financial statements and related notes may be omitted or condensed
in the quarterly financial statements of the Company and its
consolidated subsidiaries if done so pursuant to the rules and
regulations of the Commission; the supporting schedules included or
incorporated by reference in the Registration Statement present
fairly the information required to be stated therein; and the other
financial information included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the
Prospectus has been derived from the accounting records of the
Company and its subsidiaries and presents fairly the information
shown thereby; and the pro forma financial
information and the related notes thereto included or incorporated
by reference in the Registration Statement, the Time of Sale
Information and the Prospectus have been prepared in accordance
with the applicable requirements of the Securities Act and the
Exchange Act, as applicable, and the assumptions underlying such
pro forma financial information are reasonable and
are set forth in the Registration Statement, the Time of Sale
Information and the Prospectus.
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(g)
No Material Adverse Change . Since the date of the most
recent financial statements of the Company included or incorporated
by reference in the Registration Statement, the Time of Sale
Information and the Prospectus, (i) there has not been (A) any
change in the capital stock or long-term debt of the Company or any
of its subsidiaries, except for subsequent issuances, if any,
pursuant to the Company’s Stock Investment Plan or any
employee or director benefit or compensation plans of the Company
or its wholly-owned subsidiaries described in, or filed or
incorporated by reference as an exhibit to, the documents
incorporated by reference in the Registration Statement, the Time
of Sale Information and the Prospectus or as otherwise disclosed in
the Registration Statement, the Time of Sale Information and the
Prospectus, (B) any dividend or distribution of any kind declared,
set aside for payment, paid or made by the Company on any class of
capital stock, except for the quarterly dividend of $0.575 per
share on its common stock declared by the Company on October 12,
2006, or (C) any material adverse change, or any development
involving a prospective material adverse change, in or affecting
the business, properties, management, financial position,
stockholders’ equity, results of operations or business
prospects of the Company and its subsidiaries taken as a whole;
(ii) neither the Company nor any of its subsidiaries has entered
into any transaction or agreement that is material to the Company
and its subsidiaries taken as a whole or incurred any liability or
obligation, direct or contingent, that is material to the Company
and its subsidiaries taken as a whole, except as otherwise
disclosed in the Registration Statement, the Time of Sale
Information, and the Prospectus and for borrowings under the
commercial paper programs of the Company and its subsidiaries; and
(iii) the Company and its subsidiaries, taken as a whole, have not
sustained any material loss or interference with their business
from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor disturbance or dispute or
any action, order or decree of any court or arbitrator or
governmental or regulatory authority, except in each case as
otherwise disclosed in the Registration Statement, the Time of Sale
Information and the Prospectus. The Company does not have any
material contingent obligations required to be disclosed in the
Registration Statement, the Time of Sale Information and the
Prospectus which are not disclosed therein.
(h)
Organization and Good Standing. The Company has been duly
organized and is validly existing as a corporation under the laws
of the State of Wisconsin with power and authority (corporate and
other) to own, lease and operate its properties and conduct its
business as described in the Registration Statement, the Time of
Sale Information and Prospectus; the Company has not filed Articles
of Dissolution with the Department of Financial Institutions of the
State of Wisconsin, and no grounds exist for the Department of
Financial Institutions of the State of Wisconsin to dissolve such
corporation administratively pursuant to the provisions of the
Wisconsin Business Corporation Law; the Company is duly qualified
as a foreign corporation to transact business and is in good
standing in each jurisdiction in which its ownership or lease of
properties or the conduct of its business requires such
qualification, except where the failure to so qualify and be in
good standing would not, individually or in the aggregate, have a
material adverse effect on the business, properties, management,
financial position, stockholders’ equity, or results of
operations of the Company and its subsidiaries taken as a whole (a
“Material Adverse Effect”).
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(i)
Subsidiaries . Each of Wisconsin Public Service Corporation,
a Wisconsin corporation (“WPSC”), WPS Resources Capital
Corporation, a Wisconsin corporation, WPS Energy Services, Inc., a
Wisconsin corporation, Michigan Gas Utilities Corporation, a
Delaware corporation, Minnesota Energy Resources Corporation, a
Delaware corporation, WPS Power Development, LLC, a Wisconsin
limited liability company, and WPS Investments, LLC, a Wisconsin
limited liability company (each a “Covered
Subsidiary”), has been duly organized and is validly existing
under the laws of the jurisdiction of its incorporation or
organization and has corporate or limited liability company power,
as applicable, and authority to own, lease and operate its
properties and conduct its business as described in the
Registration Statement, the Time of Sale Information and the
Prospectus; no Covered Subsidiary which is organized under the laws
of the State of Wisconsin has filed Articles of Dissolution with
the Department of Financial Institutions of the State of Wisconsin,
and no grounds exist for the Department of Financial Institutions
of the State of Wisconsin to dissolve any such Covered Subsidiary
administratively pursuant to the provisions of the Wisconsin
Business Corporation Law or Chapter 183 of the Wisconsin Statutes,
as applicable; each Covered Subsidiary is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which the ownership or lease of properties or
the conduct of its business requires such qualification, except
where the failure to so qualify or to be in good standing would not
result in a Material Adverse Effect. The Company has no
subsidiaries which, either individually or considered in the
aggregate as a single subsidiary, constitute a “significant
subsidiary” as defined in Rule 405 under the Securities Act,
other than the Covered Subsidiaries.
(j)
Capitalization; Ownership of Subsidiaries. The Company has
authorized and outstanding capital stock as set forth in the
Registration Statement, the Time of Sale Information and the
Prospectus under the heading “Description of Common Stock
— General” (except for the issuance of 2.7 million
shares on May 10, 2006 as a physical settlement of a forward equity
agreement with an affiliate of J.P. Morgan Securities Inc. and
subsequent issuances, if any, pursuant to the Company’s Stock
Investment Plan or any employee or director benefit or compensation
plans of the Company or its wholly-owned subsidiaries described in,
or filed or incorporated by reference as an exhibit to, the
documents incorporated by reference in the Registration Statement,
the Preliminary Prospectus and the Prospectus); all of the
outstanding shares of capital stock or other equity interests of
the Covered Subsidiaries (i) have been duly and validly authorized
and issued and are fully paid and nonassessable, except with
respect to wage claims of employees of those Covered Subsidiaries
prior to June 14, 2006 (for such claims incurred on or after such
date, Section 180.0622(2)(b) of the Wisconsin Business Corporation
Law has been repealed) which are subject to former Section
180.0622(2)(b) of the Wisconsin Business Corporation Law, as such
statutory provision has been judicially interpreted, and (ii) other
than the preferred stock of WPSC, are owned directly or indirectly
by the Company, free and clear of any lien, charge, encumbrance,
security interest, restriction on voting or transfer or any other
claim of any third party.
(k)
Due Authorization. The Company has full right, power and
authority to execute and deliver this Agreement, the Securities and
the Indenture (collectively, the “Transaction
Documents”) and to perform its obligations hereunder and
thereunder; and all action required to be taken for the due and
proper authorization, execution and delivery of each of the
Transaction Documents and the consummation of the transactions
contemplated thereby has been duly and validly taken.
(l)
The Indenture. The Indenture has been duly authorized by the
Company and was duly qualified under the Trust Indenture Act and,
when duly executed and delivered in accordance with its terms by
each of the parties thereto, will constitute a valid and legally
binding agreement of the Company enforceable against the Company in
accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors’ rights generally or by equitable
principles relating to enforceability (collectively, the
“Enforceability Exceptions”).
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(m)
The Securities . The Securities have been duly authorized by
the Company and, when duly executed, authenticated, issued and
delivered as provided in the Indenture and paid for as provided
herein, will be duly and validly issued and outstanding and will
constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms,
subject to the Enforceability Exceptions, and will be entitled to
the benefits of the Indenture.
(n)
Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(o)
Descriptions of Certain Documents . Each Transaction
Document and the Replacement Capital Covenant, dated the Closing
Date, to be entered into by the Company (the “Replacement
Capital Covenant”) conform in all material respects to the
description thereof contained in the Registration Statement, the
Time of Sale Information and the Prospectus.
(p)
No Violation or Default. Neither the Company nor any of its
Covered Subsidiaries is (i) in violation of its charter or by-laws
or similar organizational documents; (ii) in default, and no event
has occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of
any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its Covered Subsidiaries
is a party or by which the Company or any of its Covered
Subsidiaries is bound or to which any of the property or assets of
the Company or any of its Covered Subsidiaries is subject; or (iii)
except as set forth in the Registration Statement, the Time of Sale
Information and the Prospectus, in violation of any law or statute
or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the
case of clauses (ii) and (iii) above, for any such default or
violation that would not, individually or in the aggregate, have a
Material Adverse Effect.
(q)
No Conflicts. The execution, delivery and performance by the
Company of each of the Transaction Documents, the issuance and sale
of the Securities and compliance by the Company with the terms
thereof and the consummation of the transactions contemplated by
the Transaction Documents will not (i) conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of
the Company or any of its Covered Subsidiaries pursuant to, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its Covered
Subsidiaries is a party or by which the Company or any of its
Covered Subsidiaries is bound or to which any of the property or
assets of the Company or any of its Covered Subsidiaries is
subject, (ii) result in any violation of the provisions of the
charter or by-laws or similar organizational documents of the
Company or any of its Covered Subsidiaries or (iii) result in the
violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory
authority, except, in the case of clauses (i) and (iii) above, for
any such conflict, breach, violation or default that would not,
individually or in the aggregate, have a Material Adverse
Effect.
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(r)
No Consents Required . No consent, approval, authorization,
order, registration or qualification of or with any court or
arbitrator or governmental or regulatory authority is required to
be obtained by the Company or any of its subsidiaries for the
execution, delivery and performance by the Company of each of the
Transaction Documents, the issuance and sale of the Securities and
compliance by the Company with the terms thereof and the
consummation of the transactions contemplated by the Transaction
Documents, except for the registration of the Securities under the
Securities Act, the qualification of the Indenture under the Trust
Indenture Act and such consents, approvals, authorizations, orders
and registrations or qualifications as may be required under
applicable state securities laws in connection with the purchase
and distribution of the Securities by the Underwriters.
(s)
Legal Proceedings. Except as described in the Registration
Statement, the Time of Sale Information and the Prospectus, there
are no legal, governmental or regulatory investigations, actions,
suits or proceedings pending to which the Company or any of its
subsidiaries is or may be a party or to which any property of the
Company or any of its subsidiaries is or may be the subject that,
individually or in the aggregate, if determined adversely to the
Company or any of its subsidiaries, could reasonably be expected to
have a Material Adverse Effect; no such investigations, actions,
suits or proceedings are, to the best knowledge of the Company,
threatened or contemplated by any governmental or regulatory
authority or threatened by others; and (i) there are no current or
pending legal, governmental or regulatory actions, suits or
proceedings that are required under the Securities Act to be
described in the Registration Statement, the Time of Sale
Information and the Prospectus that are not so described in the
Registration Statement, the Time of Sale Information and the
Prospectus, and (ii) there are no statutes, regulations or
contracts or other documents that are required under the Securities
Act to be filed as exhibits to the Registration Statement or
described in the Registration Statement, the Time of Sale
Information and the Prospectus that are not so filed as exhibits to
the Registration Statement or described in the Registration
Statement, the Time of Sale Information and the
Prospectus.
(t)
Independent Accountants. Deloitte & Touche LLP, who have
certified certain financial statements of the Company and its
subsidiaries, is an independent registered public accounting firm
with respect to the Company and its subsidiaries within the
applicable rules and regulations adopted by the Commission and the
Public Company Accounting Oversight Board (United States) and as
required by the Securities Act.
(u)
Title to Real Property. The Company and its subsidiaries
have good and marketable title in fee simple to, or have valid
rights to lease or otherwise use, all items of real property that
are material to the respective businesses of the Company and its
subsidiaries, in each case free and clear of all liens,
encumbrances, claims and defects and imperfections of title, except
as otherwise disclosed in the Registration Statement, the Time of
Sale Information and the Prospectus and for those that (i) do not
materially interfere with the use made and proposed to be made of
such property by the Company and its subsidiaries or (ii) could not
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
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(v)
No Undisclosed Relationships. No relationship, direct or
indirect, exists between or among the Company or any of its
subsidiaries, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its
subsidiaries, on the other, that is required by the Securities Act
to be described in the Registration Statement and the Prospectus
and that is not so described in such documents and in the Time of
Sale Information.
(w)
Investment Company Act. The Company is not and, after giving
effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the
Registration Statement, the Time of Sale Information and the
Prospectus, will not be an “investment company” or an
entity “controlled” by an “investment
company” within the meaning of the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, “Investment Company
Act”).
(x)
Taxes. The Company and its subsidiaries have paid all
material federal, state, local and foreign taxes, other than taxes
that are being disputed in good faith by the Company or any of its
subsidiaries, and have filed all material tax returns required to
be paid or filed through the date hereof; and except as otherwise
disclosed in the Registration Statement, the Time of Sale
Information and the Prospectus, there is no tax deficiency that has
been, or could reasonably be expected to be, asserted against the
Company or any of its subsidiaries or any of their respective
properties or assets that could reasonably be expected,
individually or in the aggregate, to have a Material Adverse
Effect.
(y)
Licenses and Permits. The Company and its subsidiaries
possess all licenses, certificates, permits and other
authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign
governmental or regulatory authorities that are necessary for the
ownership or lease of their respective properties or the conduct of
their respective businesses as described in the Registration
Statement, the Time of Sale Information and the Prospectus, except
where the failure to possess or make the same would not,
individually or in the aggregate, have a Material Adverse Effect;
and except as described in the Registration Statement, the Time of
Sale Information and the Prospectus, neither the Company nor any of
its subsidiaries has received notice of any revocation or
modification of any such license, certificate, permit or
authorization or has any reason to believe that any such license,
certificate, permit or authorization will not be renewed in the
ordinary course, except where the revocation, modification or
non-renewal of the same would not, individually or in the
aggregate, have a Material Adverse Effect.
(z)
No Labor Disputes. No labor disturbance by or dispute with
employees of the Company or any of its subsidiaries exists or, to
the best knowledge of the Company, is contemplated or threatened,
except as disclosed in the Registration Statement, the Time of Sale
Information and the Prospectus.
(aa)
Compliance With Environmental Laws. The Company and its
subsidiaries (i) are in compliance with any and all applicable
federal, state, local and foreign laws, rules, regulations,
requirements, decisions and orders relating to the protection of
human health or safety, the environment, natural resources,
hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, “Environmental Laws”); (ii) have
received and are in compliance with all permits, licenses,
certificates or other authorizations or approvals required of them
under applicable Environmental Laws to conduct their respective
businesses; and (z) have not received notice of any actual or
potential liability under or relating to any Environmental Laws,
including for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or
contaminants, except as in any such case as disclosed in the
Registration Statement, the Time of Sale Information and the
Prospectus and for any such failure to comply, or failure to
receive required permits, licenses or approvals, or liability, as
would not, individually or in the aggregate, have a Material
Adverse Effect.
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(bb)
Compliance With ERISA. (i) Each employee benefit plan,
within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), that
is maintained, administered or contributed to by the Company or any
of its affiliates for employees or former employees of the Company
and its affiliates has been maintained in compliance in all
material respects with its terms and the requirements of any
applicable statutes, orders, rules and regulations, including but
not limited to ERISA and the Internal Revenue Code of 1986, as
amended (the “Code”); (ii) no prohibited transaction,
within the meaning of Section 406 of ERISA or Section 4975 of the
Code, has occurred with respect to any such plan excluding
transactions effected pursuant to a statutory or administrative
exemption; and (iii) for each such plan that is subject to the
funding rules of Section 412 of the Code or Section 302 of ERISA,
no “accumulated funding deficiency” as defined in
Section 412 of the Code has been incurred, whether or not
waived.
(cc)
Disclosure Controls . The Company and its subsidiaries
maintain an effective system of “disclosure controls and
procedures” (as defined in Rule 13a-15(e) of the Exchange
Act) that is designed to ensure that information required to be
disclosed by the Company in reports that it files or submits under
the Exchange Act is recorded, processed, summarized and reported
within the time periods specified in the Commission’s rules
and forms, including controls and procedures designed to ensure
that such information is accumulated and communicated to the
Company’s management as appropriate to allow timely decisions
regarding required disclosure. The Company and its subsidiaries
have carried out evaluations of the effectiveness of their
disclosure controls and procedures as required by Rule 13a-15 of
the Exchange Act.
(dd)
Accounting Controls. The Company and its subsidiaries
maintain systems of “internal control over financial
reporting” (as defined in Rule 13a-15(f) of the Exchange Act)
that comply with the requirements of the Exchange Act and have been
designed by, or under the supervision of, their respective
principal executive and principal financial officers, or persons
performing similar functions, to provide reasonable assurance
regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with generally accepted accounting principles,
including, but not limited to internal accounting controls
sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or
specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted
only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except
as disclosed in the Registration Statement, the Time of Sale
Information and the Prospectus, since the end of the
Company’s most recent audited fiscal year, there have been
(i) no material weaknesses in the Company’s internal control
over financial reporting (whether or nor remediated), and (ii)
except for changes in the Company’s internal controls as a
result of the outsourcing of customer billing and collection
services at Michigan Gas Utilities Corporation and Minnesota Energy
Resources Corporation, no change in the Company’s internal
control over financial reporting that has materially affected, or
is reasonably likely to materially affect, the Company’s
internal control over financial reporting.
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(ee)
Insurance. The Company and its subsidiaries have insurance
covering their respective properties, operations,
personn
